In CIVIL APPEAL No.2473 OF 2022-SC- Candidate can claim appointment to unfilled post if there is provision for waiting list as per statutory provision, rules Top Court Justices M.R.Shah and B.V.Nagarathna [19-04-2022]

Read Judgment: Vallampati Sathish Babu v. The State of Andhra Pradesh & Ors 

Tulip Kanth

New Delhi, April 21, 2022: Holding that the Andhra Pradesh High Court had not committed any error in refusing to appoint the appellant-candidate to the post which remained unfilled due to non-participation of one of the selected candidates for counselling, the Supreme Court has opined that the appellant could have claimed the appointment to the post which remained unfilled provided there was a provision for waiting list as per the statutory provision.

The Division Bench of Justice M.R.Shah and Justice B.V.Nagarathna referred to the Top Court’s judgment in Bihar State Electricity Board Vs. Suresh Prasad & Ors. wherein it was observed that even in case candidates selected for appointment have not joined, in the absence of any statutory rules to the contrary, the employer is not bound to offer the unfilled vacancy to the candidates next below the said candidates in the merit list. 

The Appeal in question was filed by the original applicant against the impugned judgment and order passed by the Andhra Pradesh High Court at Amravati whereby the writ petition preferred by the State was allowed and order passed by the A.P. Administrative Tribunal, Hyderabad holding the appellant entitled for appointment was quashed. 

The Appellant had participated in the selection process carried out by the respondents for recruitment of Teachers under the Notification dated January  30,2012. Thirty-three posts were notified and the recruitment process was initiated for the notified 33 vacancies. The appointments were governed by the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012 (Rules, 2012). The Guidelines had also been issued by the State Government for the selection process including the preparation of selection list, conduct of counselling and issue of appointment and posting orders to the selected candidates under G.O. Ms. No. 91 dated November 3,2012.

After participating in the said selection process the appellant was placed at 34th position. The respondents declared that the candidates upto serial No. 33 (notified vacancies) in the merit list were being selected in the available vacancies and accordingly invited the 33 candidates to appear for counselling. One candidate, who secured 18th rank did not turn up for counselling and one post in general category remained unfilled due to the non-participation of the said candidate. 

The appellant made a representation before the respondents seeking for consideration of his candidature relying upon para 8 of the Guidelines and when he was not offered the employment, he approached the Tribunal seeking a direction to the respondents to appoint him as Secondary Grade Teacher (S.G.T.) in the unfilled vacancy. The Tribunal held  that the appellant was entitled for appointment as per para 8 of the Guidelines.Then, the State preferred a writ petition before the High Court which was allowed by the High Court and the Tribunal’s order was quashed. Thus, this appeal was filed.

From the appellant’s  side it was submitted that until 33 posts were filled in, it couldn’t be said that the selection process was complete. Rule 16(5) of Rules, 2012 was also referred to which says that the number of candidates selected shall not be more than the number of vacancies notified.

The counsel for the State contended that in terms of Rule 8(g), once the final selection list is published, there can be no waiting list. It was argued that the respondents are bound by Rule 8(g) in terms whereof, there can be no waiting list and thus, no appointment order was issued in favour of the appellant.

The issue raised before the Top Court was whether the appellant was entitled to the appointment on the post which remained unfilled due to one selected candidate not appearing for counselling.

On a fair reading of Rule 16 of the Rules, 2012 read with the Guidelines, the Division Bench observed that once the final selection list is prepared, there should be no waiting list and if any posts are unfilled for any reason whatsoever then those shall be carried forward for future recruitment as per sub-Rule (5) of Rule 16 of the Rules, 2012.

With respect to the issue of waiting list, the Court was of the opinion that the appellant claiming to be the next in the merit could not claim any appointment as his name neither figured in the list of the selected candidates nor in any waiting list as there was no provision at all for preparation of the waiting list. Mentioning Sub-rule (5) of Rule 16 , it was discerned that once there was no provision for waiting list, the post, which remained unfilled due to one of the candidates in the final selection list not appearing for counselling would have to be carried forward to the next recruitment as per sub-rule (5) of Rule 16.

The Division Bench said, “The appellant could have claimed the appointment to the post which remained unfilled provided there is a provision for waiting list as per the statutory provision. In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment. The appellant herein, thus, had no right to claim any appointment to the post which remained unfilled.”

The Bench asserted that if the submission on behalf of the appellant was accepted, it would lead to providing for preparation of a waiting list, which otherwise was not permissible as per sub-rule (5) of Rule 16 and it would lead to directing the respondents to act contrary to the statutory provisions. Thus, dismissing the appeal, the Top  Court concluded that the High Court had not committed any error in refusing to appoint the appellant to the post which remained unfilled due to one of the selected candidates in the final selection list not appearing for counselling.